6/27/2014

Antonin Scalia Now Thinks Parts of the Constitution Are Anachronisms (Just the Ones That Bug Him)

The Rude Pundit was reading the Supreme Court's decision in NLRB v. Canning (also known as the "Sure, Congress, go ahead and be dicks to the President about recess appointments" case) because that's what he does rather than listen to what every blathering idiot with a blog says. He was well into Judge Antonin "Eyebrows of Eternal Condemnation" Scalia's concurrence with the majority when he came across something that made him think, "What the fuck did I just read from Tony Originalist?"

Discussing the issue of adjournments and recess appointments, Scalia discussed the clause of the Constitution that allows them, in Article II, section 2, and he was getting deep into the self-created weeds of the meaning of the word "recess" when he wrote, "The rise of intra-session adjournments has occurred in tandem with the development of modern forms of communication and transportation that mean the Senate 'is always avail­able' to consider nominations, even when its Members are temporarily dispersed for an intra-session break." Now, it's one thing to say that constitutional protections extend to modern technology, as in the smart phone case, but it's quite another to say that the Constitution is trumped by technology.

Scalia went to say that "The Recess Appointments Clause therefore is, or rather, should be, an anachro­nism," and then he quoted Justice Kagan with “essentially an historic relic, something whose original purpose has disappeared," adding his own, "The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appoint­ment process."

Now, Scalia believes that the clause means that appointments can only be made for positions that become open during a recess, which the majority of justices do not. He would curtail it much further than the five justices in the main opinion. So he said, "That does not justify 'read[ing] it out of the Constitution” and, contra the majority, I would not do so; but neither would I distort the Clause’s original meaning, as the majority does, to ensure a prominent role for the recess-appointment power in an era when its influ­ence is far more pernicious than beneficial."

But, still, Scalia, who wants to cast the bones of James Madison to divine the meaning of the Constitution, said, really, that a part of the document is "an anachronism," a "relic," rendered so by changes in technology, culture, and society.

The vast, complete, almost mindboggling hypocrisy of Scalia here is something he would snort at apathetically because he is just a pathetic tool of the right, a bully and a cockknob, a symbol of the intersection between knowing corruption of the law and the bloated, ever-expanding demands of a conservative, corporate state. On the other hand, what the Rude Pundit thought upon reading that section was "Hey, fucko, if technology renders the Recess Appointments Clause a relic, why don't advances in weaponry affect the Second Amendment? Why isn't that a fuckin' anachronism, a musket-based law forced into an AR-15 world?" All through his majority opinion in the Heller decision in 2008, Scalia fist fucks the language of the Second Amendment to force it to still be valid.

Interestingly, later in his concurrence in Canning, Scalia says what could, with little change, refer to the Second Amendment: "It is inconceivable that the Framers would have left the cir­cumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate."

Yeah, it's inconceivable that the Framers would have wanted a 50-round magazine and a fuckin' arsenal in every home, too. It's pretty clear who the relic and anachronism is around the Supreme Court.